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India’s newest rape law needs to be tweaked

“Indian guys are so desperate,” she said, while discussing an act of molestation. To myself I thought, how different could an Indian guy be from most others and swiftly realised that any comment to the adverse could be met with resistance. My gender would work against me in the chat of the moment. “They just can’t control themselves,” she added.

“Your ire towards the guilty in question is justifiable but generalising an entire gender defeats all logical purpose. It’s almost as skewed as an illogical Khap view that objectifies women and lays down dress codes as if it were a depiction of their moral fiber,” I quipped. “A generalisation of this nature almost presumes that men, in general, and Indian men, in particular, have a weakness towards rape and an uncontrollable urge to indulge in an act of violence. Now, that isn’t all quite correct and you’re probably missing the whole point,” I added.

Rape is a crime and not one merely of passion. It’s a weapon used to subjugate, to perpetrate hate, to force submission, to prove a point, to avenge, even satiate the need for retribution, however misplaced. For obvious reasons and in sharp contrast to most other crimes as or more grievous, rape evokes very strong responses. In that, lies the paradox of the social treatment of the offence. There are parameters which need to be fulfilled; parameters that are at direct variance with each other.

Consider this: while on the one hand, there’s an overwhelming view to treat rape on par with any other crime and, concurrently, free the ‘victim’ from social ostracism; on the other, the impassioned enrage towards the ‘accused’ in the media, overwhelming pressure on investigating authorities and a collective cry to hang the accused almost infers a near conclusive guilt. The two, at variance, deter the progress of logical processes and place hurdles in the way of legal resolution.

Laws are created and modified to meet social needs. In that, it would be a given to understand that no law is absolute in itself. Lawmakers constantly attempt to tweak the law to address real-time needs which change almost constantly. The Delhi gang-rape and the outrage that ensued was a trigger to tweak the law to meet inadequacies that had to be addressed. Following them being addressed, it must be realised that the new law once again remained open to change that needed to follow in the passage of time and dynamic realms of social behavior and it wasn’t absolute either.

Change in law was needed
The reactions that followed Delhi gang-rape were warranted in that they triggered a change in the law – a defined shift in onus where the involvement of juveniles in rape was concerned; more severe punishment in cases of acid-attacks; an enhanced punishment for rape compounded with other offences like murder and others.
That said, as is the won’t, certain areas were ignored in the process. Real-time situations cannot be simulated to aid parliamentary processes and need to actually happen before law-makers wake to a socio-legal need and…legislate!

Only recently, the Anti Corruption Bureau invoked the Prevention of Corruption Act; laid charges of extortion, threat and blackmail on two Mumbai policemen following a real estate agent’s complaint that they were helping three men blackmail and extort Rs 50 lakh from him. The complainant, a young estate agent alleged in his police complaint that when he met one of them at a police station recently, he was told that a 20-year-old woman had filed a gang-rape complaint against him and began to summon him.

In what is alleged to be a fake application, the policeman told the complainant the victim had given an application stating that the complainant had spiked her drink and she had been gang-raped by three to four persons, including the complainant. This application was marked as sent to the chief minister, the home minister and the Mumbai police commissioner while in reality, it had not even reached Khar police station’s senior inspector. Apparently, investigators learnt that the accused had fabricated the application to frighten the complainant.

In another case which exposes the need for change in the present-day law, a 17-and-a-half year old girl and a 27-year-old boy fell in love and planned to convince their families to get them married. However, before they could do so, the girl discovered she was pregnant. After her grandparents, with whom she had been living since her parents’ death, learnt of her pregnancy, they forced an abortion.

Since she was a minor, the hospital, as prescribed under the law, reported the case to the police and the boy was booked under the Protection of Children from Sexual Offences Act, 2012 (POCSOA). Following an immediate arrest, the boy had to spend five-and-a-half months in jail before being released on bail in October.

Now, under the law according to POCSOA, the age of consent has been increased from 16 years to 18 years and it criminalises every sexual act involving minors, even if it is with her “consent”.

After his release in October, the boy married the girl. However, the case against him continued till the Vasai Sessions Court finally acquitted him. But, if the Court had gone strictly by Section 4 of POCSOA the boy would be proved guilty, and could have been sentenced to seven years rigorous imprisonment.

Lately, the Supreme Court, while hearing a case filed by a former airline cabin crew member against a top banker, expressed concerns over the recent increase in cases where women had filed complaints of rape against their male partners after their relationship went sour, mostly accusing them of sexual exploitation with the promise of marriage.

“Where is it held that if you had a relationship for two years, it becomes rape when it failed?” asked the Supreme Court bench while hearing the case where the complainant had alleged that the accused had taken advantage of her for two years and then refused to marry her. The accused was already married and the complainant knew it.

Police stations witness surge in complaints
Following reforms in rape law, Mumbai’s police stations have witnessed a surge in the number of rape complaints, with more and more women coming forward to lodge criminal protests; the most worrying being ‘technical rapes’, which stem from failed relationships. According to police, these are cases where a consensual sexual relationship later turns into a complaint of rape against the man. Officers claim around 80 per cent of rape cases registered with them are ‘technical’ in nature though procuring exact figures was impossible.

There is a definite need to address the law on rape in a sound comprehensive manner through legislative deliberations and after taking precedents from across the world into consideration. Issues such as preventing the identification of an accused – particularly of rape considering the stigma that comes attached – by the police and the media, need to be addressed.

Glasgow police display sensitivity
In this context, it’s pertinent to note the sensitive and exemplary manner in which Glasgow Police authorities made statements regarding the two Indian officials who were arrested in Glasgow during the 2014 Commonwealth Games tournament before being let off after the separate charges against them were dropped for lack of evidence.

A spokeswoman for Police Scotland had said, “On Saturday, August 2, a 49-year-old man was arrested on suspicion of assault in Glasgow city centre and a 45-year-old man was held for alleged assault in west Glasgow…Both men are expected to appear at Glasgow Sheriff’s Court on Monday.” The police didn’t identify either of the accused. Back in India, the police would have gleefully revealed the identity of the accused and posed with him – head covered by a cloth – for publication across the nation. In the absence of a law preventing this, sections of the police and media will continue to act in ways outrightly insensitive and in violation of right to privacy.

Being emotional about rape won’t work
Introducing a battery of laws to curb the rate of rapes or other crimes isn’t actually effectual. It only creates an illusion of safety besides fetching votes for the legislating party. What we need to do is to tweak the law on rape as others with far-sighted vision, sensitivity and thoroughly researched deductions. Once that is done, we also need to be ready to undertake an impartial appraisal of whatever we legislate, when needed and…apply the change. Getting overtly emotional about rape instead of being logical will only land us with an entirely new set of problems and fail to address the real issue…that of deterrence!

DISCLAIMER : Views expressed above are the author's own.

Blog

In Conversation attempts to bring into focus, key issues that affect life in general. Pegged on a chat with a commoner in private domain or a comment by a known figure in public domain, this blog will address matters that deserve to be in the news but don't figure for lack of glam value; sheer will on the part of policy-makers or simply lack the support of numbers so vital for an issue to be in public focus in a democracy. Personal in tone and pith, the blog will attempt to strike a balance between decrypting law and policy to reach the common while desisting from indulging in common-as-ever oversimplification and jingoism.

Author

Gajanan Khergamker is an Editor, Solicitor and Documentary Film-maker with over three decades of experience in Media and Law. He is the founder of DraftCraft International - a global policy research and analysis think tank. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs, diversity and specific issues regarding the disabled, LGBT, women and animals. Twitter handle: @IndiaRighter

Gajanan Khergamker is an Editor, Solicitor and Documentary Film-maker with over three decades of experience in Media and Law. He is the founder of DraftCraf. . .

Blog

In Conversation attempts to bring into focus, key issues that affect life in general. Pegged on a chat with a commoner in private domain or a comment by a known figure in public domain, this blog will address matters that deserve to be in the news but don't figure for lack of glam value; sheer will on the part of policy-makers or simply lack the support of numbers so vital for an issue to be in public focus in a democracy. Personal in tone and pith, the blog will attempt to strike a balance between decrypting law and policy to reach the common while desisting from indulging in common-as-ever oversimplification and jingoism.

Author

Gajanan Khergamker is an Editor, Solicitor and Documentary Film-maker with over three decades of experience in Media and Law. He is the founder of DraftCraft International - a global policy research and analysis think tank. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs, diversity and specific issues regarding the disabled, LGBT, women and animals. Twitter handle: @IndiaRighter

Gajanan Khergamker is an Editor, Solicitor and Documentary Film-maker with over three decades of experience in Media and Law. He is the founder of DraftCraf. . .